Human Rights and Social Issues at the U.N.: A Guide for U.S. Policymakers

Whittaker Chambers once described the Cold War as the "critical
conflict of…the two irreconcilable faiths of our
time-Communism and Freedom."[1] Freedom prevailed in that grave clash of
the 20th century, but it remains embattled in a new cold war of
ideas.

As the United States defends its freedom at home and abroad, it
can expect to be endlessly engaged in cold wars of ideas. America
is a nation built on an idea: specifically, the principle "that all
men are created equal, that they are endowed by their Creator with
cer­tain unalienable Rights, that among these are Life,
Lib­erty, and the pursuit of Happiness." That idea had its
enemies in 1776, and it continues to have them today.

"[W]ars of ideas are fought in terms of ideas and for the sake
of ideas. It follows that ideas…must be in good fighting
shape," wrote the late Adda Bozeman, an expert on the interrelation
of culture and state­craft.[2] Today, a number of the ideas
essential to the American order-including those about the
impor­tance of family, religion, and civil society in relation
to freedom-are not in prime "fighting shape." This leaves the
United States vulnerable to opposing views advanced in the
international arena, particularly at the United Nations.

The American concept of freedom is influenced by the character
of American culture. Civil society in America has been marked by a
strong tradition of religious belief and practice and by the type
of pri­vate associations that intrigued Alexis de Tocqueville
as an early 19th century visitor. These features dis­tinguish
American freedom as much as its market economy does. A civil
society in which moral authority is exercised by religious
congregations, family, and other private associations is
fundamental to the American order. Such moral authority
sup­ports limited government by obviating the need for
expansive government regulations. In this way, strong civil society
institutions-family, religious congregations, and private
associations-reinforce the American founding ideas about limited
govern­ment and individual liberty. On the other hand, when
these elements of civil society are weakened or hemmed in, freedom
is more susceptible to erosion, both conceptually and practically,
at home and abroad.

One defining characteristic of national sover­eignty is the
authority to protect and preserve both a public and a private
sphere. A nation must defend its government and its people in their
private lives. In the case of America, the self-stated purpose of
sover­eignty is to secure a society in which citizens are free
to enjoy the rights of life, liberty, and the pursuit of happiness.
Preserving American civil society is an inherent purpose of U.S.
national security.

During the 20th century, the role of government in American
society increased substantially. With the New Deal and Great
Society, the national gov­ernment took on an increasingly broad
role in administering aspects of citizens' daily lives, including
welfare and family-related issues. The understanding of religious
liberty became more and more circumscribed.[3]

At the same time, international relations were tending toward
administrative detail. Since World War II, international
peacekeeping at the United Nations has grown into international
policymaking on a wide range of issues. Historically, international
law has been concerned with matters among states, such as rules of
war, freedom of the seas, and treat­ment of foreign nationals
and diplomats.[4] In recent decades, however, international
treaties and conven­tions, customary law, and regulatory
declarations by technical experts have affected policy on social
issues from education to women's health.

From the U.S. constitutional perspective, such social issues
fall within the sovereign domain of the United States. Further,
many of them remain the province of state or local authorities or
are outside the purview of public policy altogether as matters
subject to individual private decisions. These social issues
properly belong within the jurisdiction of the citizens of the
United States, who should deter­mine which level of government
should formulate public policy or whether the matter should be left
within the sphere of civil society, protected within-but not
regulated by-the constitutional order of the United States.

U.S. government officials should protect Ameri­can civil
society and retain jurisdiction over domes­tic social issues by
resisting policy encroachment into these areas by the United
Nations and its many subsidiaries. As the elected, legislative
branch of U.S. government with the primary responsibility for
policymaking at the federal level, Congress should maintain
increased awareness of the scope of U.N. policymaking and exercise
greater over­sight of U.S. involvement in U.N. policymaking
bodies. Preserving constitutional authority over domestic policy
should be a clear objective within overall U.S. foreign policy.
Protecting civil society is critical to the freedom agenda.

Definition of Terms

The following are key terms and concepts for evaluating the
United Nations' handling of human rights and social issues.

Civil Society vs. the Administrative State. The American
Founders frequently asserted that virtue and religion are essential
to maintaining a free soci­ety because they "secur[e] the moral
conditions of freedom."[5] Man is capable of both justice and evil,
they believed, and needs to be inspired to love his neighbors and
restrained from harming them by a moral authority beyond government
edict. Political solutions must take man's nature into account,
moderating it through checks and balances for those in power and
encouraging it toward profit­able activity in the private
sphere.

If affections like familial love and religious faith have the
power to pacify the human passions that provoke conflict, family
and religion can be counted among the allies of freedom.
Furthermore, if the family can provide for the welfare of
individ­uals, particularly children, more effectively than the
state can, then marriage and parental authority should have the
respect of the law. In a free society, law and policy should create
an environment in which family, religious observance, and private
associations will flourish. This means, in part, securing the
private sphere in which these institu­tions can thrive free
from both external threat and internal governmental
encroachment.

"Necessitous men are not free men," said Presi­dent Franklin
D. Roosevelt in 1944.[6] If men in need cannot be free men, a
government dedicated to the preservation of freedom must also
commit itself to the elimination of need among its citizens. Such a
view leads to a proliferation of government services and a list of
"rights" that has no logical end. For Roosevelt, these "economic
truths" were as self-evident as the Declaration's truths "that all
men are created equal, that they are endowed by their Cre­ator
with certain unalienable rights." The rights to life and liberty,
however, "proved inadequate to assure us equality in pursuit of
happiness," declared Roosevelt, and that demanded "a second Bill of
Rights under which a new basis of security and prosperity can be
established." Roosevelt's list included the right to a job and a
"decent home," the right to "adequate medical care and the
opportu­nity to achieve and enjoy good health," and the right
to protection from the "economic fears of old age, sickness,
accident, and unemployment," among others. "All of these rights
spell security," he concluded.[7]

The New Deal of the 1930s, followed in the 1960s by the Great
Society, began to enact Roosevelt's new "rights" as entitlements:
as services, from welfare to education to health care, that the
state owes to individuals. This significantly changed the
relationship between government and civil society. Rather than
securing the space in which individuals in their social context of
family and private association are free to pursue their
hap­piness, government would satisfy their needs.
Enti­tlement programs have changed the character of government
as well, from the well-balanced three branches conceived in the
Constitution to a national government dominated by administrative
bureaucracy and promulgating extensive regula­tion of everyday
life in America.[8]

The Internationalization of Administrative Government. In
1944, Roosevelt linked his domestic agenda directly to an
international peace-keeping agenda then emerging at the end of the
Second World War:

The one supreme objective for the future…for each nation
individually, and for all the United Nations, can be summed up in
one word: Security. And that means not only physical security which
provides safety from attacks by aggressors. It means also economic
security, social security, moral security-in a family of Nations.[9]

This expansive definition of security, both at home and abroad,
would change the nature of the relationship between state and
citizen, as well as relations among nation-states.

Two world wars had convinced some that the international system
was hopelessly mired in power struggles. The nature of the
relationships among nations and institutions, not the nature of
man, was seen as the root of conflict. One strategy for overcoming
power politics was to increase administrative cooperation among
nation-states. Interaction would produce interdependence that could
supersede national interest, it was argued. The world needed "a
working peace system," according to Romanian political scientist
David Mitrany, an early member of the faculty at the Insti­tute
for Advanced Study in Princeton, New Jer­sey,[10] "Not a peace that
would keep the nations quietly apart, but a peace that would bring
them actively together."[11]

In terms like those used by FDR, Mitrany defined security as "an
undisturbed social life," not "the out-dated sense of security of a
physical terri­tory, to be protected by tanks and planes."[12]
This could best be achieved through what he called a "functional"
approach, "making frontier lines meaningless by overlaying them
with a natural growth of common activities and common
admin­istrative agencies." Power politics then would give way
to harmonious international relations built around functions, such
as fighting poverty or advancing education. Promoting welfare was
intended to prevent warfare.[13]

This would transcend territorial sovereignty and military might
and instead "distribute power in accordance with the practical
requirements of every function."[14] Technical expertise and
compe­tency, not claims of sovereign jurisdiction over
ter­ritory, would be the prerequisites of authority.
Bureaucracy, not the executive or legislature, would be the
operative agent of international relations.

One of the merits of this method, from Mitrany's perspective,
was that progress was not dependent on formal agreement at every
turn. He considered it a flaw of previous peace attempts that they
had sought to make terms explicit by treaty when what was really
needed was to make them actual in prac­tice.[15] Here he drew a
lesson from FDR's New Deal:

The significant point in the emergency action [by Roosevelt] was
that each and every problem was tackled as a practical issue in
itself. No attempt was made to relate it to a general theory or
system of government. Every function was left to generate others
gradually, like the functional subdivision of organic
cells.… A great constitutional transformation has thus taken
place without any changes in the Constitution.… People have
gladly accepted the service when they might have questioned the
theory.[16]

International organizations figure prominently in functional
theory.[17] Writing on the 25th anni­versary of
the United Nations in 1970, Mitrany suggested that the U.N.'s
future success was depen­dent on expanding its functional
activity.[18] The United Nations has indeed taken such
a course (described below), adding to its number of
"func­tional bodies" over the decades, with the
adminis­trative scope of each of these subsidiary bodies
dramatically expanding at the same time.

But while functional interaction among nations has increased
through the U.N. and related organi­zations, it has not ushered
in an era of peace. The internationalization of the administrative
state has merely opened a new front for political conflict among
nations. States lacking military power have a new means of
confronting traditionally stronger nations on the world stage.
Expanded international policymaking has thus heightened, not
tran­scended, power politics.

Moreover, the functional relationships that have emerged are not
nearly so organic as theorists of this school might have imagined;
instead, like the vanguard to help the proletariat achieve the
revolu­tion it did not know it wanted, the functional
net­works that have emerged in international organizations are
dominated by politicized factions that frequently do not represent
the views of the populations that they claim to represent. States
and nonstate actors alike pursue their interests and seek to impose
their agendas globally through the func­tional avenues that
Mitrany and others had envi­sioned for keeping the peace.

The U.N. Architecture for Human Rights and Social Issues.
Headlines about cease-fires and negotiations to avert war often
obscure the ongoing functional work of the United Nations. Far from
being merely a forum in which the nations of the world can assemble
in moments of crisis, the U.N. and its agencies in fact debate,
oversee, and budget for projects and issues well beyond military
and humanitarian emergencies. Although not originally promoted as
an entity that would become involved in actively seeking to shape
member states' domes­tic policies, the U.N. has become
increasingly intrusive in these arenas. Its purposes include:

to promote social progress and better standards of life in
larger freedom, to unite our strength to maintain international
peace and security, and to ensure, by the acceptance of principles
and the institution of methods, that armed force shall not be used,
save in the common interest, and to employ international machinery
for the promotion of the economic and social advancement of all
peoples.[19]

The international machinery has become quite intricate. The
United Nations is composed princi­pally of the General
Assembly, the Security Council, the Economic and Social Council,
the Trusteeship Council, the International Court of Justice, and
the Secretariat. By its own admission, however, the "United Nations
family…is much larger," consisting of 15 agencies and
numerous additional programs and entities.[20] Each of these
other U.N. agencies has its own governing body and budget.

Together, the U.N.'s agencies, programs, funds, and commissions
"provide technical assistance and other forms of practical help
in virtually all areas of economic and social endeavour."[21]
The U.N. Depart­ment of Economic and Social Affairs alone
includes 12 divisions and offices, ranging from the Office of the
Special Adviser on Gender Issues and the Advancement of Women to
the Secretariat of the United Nations Forum on Forests.[22] A
chart of the various U.N. bodies and structures includes six
principal organs, 11 subsidiary bodies, nine func­tional
commissions, 19 specialized agencies, 17 departments and offices of
the Secretariat, 14 pro­grammes and funds, five research and
training institutes, five regional commissions, four other bodies,
five other U.N. entities, and four related organizations.[23]
Mitrany's observation about the expansion of the New Deal seems to
describe the growth of the U.N. as well: "Every function was left
to generate others gradually, like the functional subdivision of
organic cells."

Treaties and conventions are the most formal documents generated
by the U.N. system; they are legally binding on the signatories and
require great negotiation and scrutiny. The more common and
voluminous products of the U.N. system include declarations,
protocols, and administrative docu­ments issued by "treaty
bodies," sometimes referred to as "implementing committees."

Treaty bodies are staffed with technical experts who are tasked
with ensuring that states that have ratified a treaty implement its
provisions at the national level. Although member states' delegates
negotiate a treaty and their national governments sign and ratify
it, it is the treaty body that largely determines the treaty's
ongoing impact years into the future. Each treaty body is composed
of inde­pendent experts who retain the ongoing
policy­making authority to define, interpret, and expand the
parameters of treaty compliance, which are binding on treaty
signatories. States are obligated to submit periodic reports to the
treaty body to dem­onstrate their domestic progress in
complying with the treaty. The treaty body investigates the state's
reported action, communicates its concerns, and issues
recommendations for the state's future action. The state is then
"expected to undertake the necessary measures to implement the
recommen­dations of the treaty bodies."[24]

In addition, U.N. functional forums have greatly increased the
significance of nonstate actors and their agendas. These forums
give occasion for non­governmental organizations (NGOs) to
express political agendas separate from, and even at odds with, the
policies of most nation-states. Such groups typically specialize in
economic and social policy advocacy and have used avenues such as
U.N. conventions, committee reports, and custom­ary
international law to great effect in changing the domestic policies
of nations around the world. These NGOs are numerous at the United
Nations. As of March 2005, there were 2,613 NGOs in
con­sultative status with the U.N. Economic and Social Council
(ECOSOC).[25] NGOs are heavily involved in the
controversies surrounding the various social issues discussed
below.

Current Controversies

Some of the current controversies at the U.N. are of particular
significance to the United States in maintaining its sovereign
jurisdiction over domes­tic policymaking and preserving the
freedom of American civil society.

Human Rights: Individual Rights vs. Social Rights.
Although international declarations and covenants applaud human
rights, and states and nongovernmental organizations alike pledge
to defend them, there is no agreement within the framework of the
U.N. as to what distinguishes human rights from other sorts of
rights, what they include, who has such rights, and the authority
from which they are derived.[26]

The U.N. General Assembly adopted the Univer­sal Declaration
of Human Rights by unanimous consent (with eight abstentions) in
1948. Although it is not a legally binding treaty, the Universal
Dec­laration serves as the foundation of international human
rights law.[27] The U.N. treaties that have fur­ther
defined international human rights law are the International
Covenant on Civil and Political Rights (1966); the International
Covenant on Eco­nomic, Social and Cultural Rights (1966); the
Con­vention on the Elimination of All Forms of Racial
Discrimination (1966); the Convention on the Elimination of All
Forms of Discrimination Against Women (1979); the Convention
Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment (1984); the Convention on the Rights of the
Child (1989); and the Conven­tion on the Protection of the
Rights of All Migrant Workers and Their Families (1990).

As an illustration of the ambiguity surrounding U.N. human
rights documents, the U.S. has declined to ratify the Convention on
the Elimina­tion of All Forms of Discrimination Against Women
and the Convention on the Rights of the Child, arguing that while
these treaties ostensibly deal with human rights, they actually
infringe on domestic policymaking concerning family and would
impede U.S. government capacity to protect individual rights.[28]

The Universal Declaration recognizes "the inher­ent dignity
and…the equal and inalienable rights of all members of the
human family."[29] Unlike the United States' Declaration of
Independence, how­ever, it never identifies a source of or
rationale for humanity's inherent dignity or man's inalienable
rights. The failure to address these fundamental philosophical
questions has hampered the efficacy of human rights law and has not
prevented egre­gious violations of basic human rights. More
than 50 years after the creation of the U.N., ongoing wide-scale
abuse and genocide, most notably in places like Sudan, demonstrate
the inadequacy of U.N. functional bodies in promoting and
protect­ing basic human rights.

While the Universal Declaration states that "all human beings
are born free and equal in dignity and rights" and asserts that
"everyone has the right to life, liberty and security of person,"
it also insists that no one ought to suffer "attacks upon his
honour and reputation" and that "everyone has the right to rest and
leisure, including…periodic holidays with pay."[30]
According to Mary Ann Glendon, Professor of Law at Harvard
University and former delegate to the Fourth U.N. Conference on
Women, the Univer­sal Declaration today "is almost universally
regarded as a kind of menu of rights from which one can pick and
choose according to taste."[31]

Another example of a U.N. action that has dif­fused the
definition of human rights is the "right to development," defined
in a 1986 U.N. statement as "an inalienable human right by virtue
of which every human person and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural
and political development."[32] (It also calls for
"general and complete disarmament" and for all nations to ensure
that resources resulting from such disarmament are redirected to
develop­ment.)[33] In response to efforts to assert, within
the context of human rights deliberations, a "right to development"
on the part of nations, a U.S. repre­sentative clarified that
it does not make sense to claim "a nation's right to
development…for the simple reason that nations do not have
human rights." Nations "may have sovereign rights, but…[w]e
are here to talk about human rights- the rights of individuals and
the responsibilities of states to see that those rights are
respected."[34]

The confusion about human rights stems from a dispute about the
nature of rights in general. In 1947, even before the Universal
Declaration of Human Rights was adopted, David Mitrany
observed:

[G]rand international "Declarations" of human rights had become
generally irrelevant and unenforceable with the transformation in
the relationship between state and society. In the new planned
"welfare state" traditional, essentially negative, individual
rights were being translated into positive collective
rights…within the ambit of the spreading administrative
web.[35]

Social rights could be applied across national boundaries to
specific groups in society along com­mon interest lines. This
transformation led to the understanding of rights in terms of
classes-e.g., women's rights, children's rights, migrants' rights-
which has detracted from the principle of universal natural human
rights.

Mitrany cut to the heart of the conflict between the classic
view of individual rights and the emerg­ing social rights:
"Between individual rights in the traditional sense and social
rights in the modern sense there is indeed an inevitable
compensating relationship…. [T]he one can only increase at
the expense of the other."[36] That mid-century observa­tion is an
apt commentary on the U.N. human rights situation today.

Reproductive and Sexual "Rights." "Reproduc­tive
health" has become one of the most conten­tious social issue
battlefronts at the United Nations, and abortion has been at the
center of the ongoing debate. The Beijing Declaration and Platform
for Action, the product of the Fourth World Confer­ence on
Women in 1995, defines reproductive health as "a state of complete
physical, mental and social well-being and not merely the absence
of dis­ease or infirmity, in all matters relating to the
repro­ductive system and to its functions and processes."[37]
The Platform for Action-the docu­ment that details the
strategic objectives and actions that governments committed to
undertake to achieve the Beijing Declaration's stated goals- goes
on to assert that people ought to be "able to have a satisfying and
safe sex life and…the capabil­ity to reproduce and the
freedom to decide if, when and how often to do so."[38]
The U.N. Population Fund explicitly "calls for women's empowerment
in all spheres of life, particularly regarding their reproductive
and sexual health and rights."[39]

International advocacy groups have gone a step further.
According to Human Rights Watch, for example:

[W]omen's decisions about abortion are not just about their
bodies in the abstract, but rather about their human rights
relating to personhood, dignity, and privacy more broadly.
Continuing barriers to such deci­sions…interfere with
women's enjoyment of their rights.[40]

Human Rights Watch has argued that "interna­tional human
rights legal instruments and interpre­tations of those
instruments by authoritative U.N. expert bodies compel the
conclusion that access to safe and legal abortion services is
integral to the ful­fillment of women's human rights
generally."[41] The NGO's claim is based on the
conclusions and rec­ommendations that U.N. treaty-monitoring
bodies have issued to member states.

This regulatory practice is prevalent. As of early 2005, U.N.
treaty bodies had issued recommenda­tions in at least 122
instances urging 93 countries to modify their abortion laws.[42]
Like many other countries, the United States has sought repeatedly
to keep these sensitive matters within its sphere of sovereignty.[43]

The movement to create sexual rights has included an effort to
define sexual orientation as a human right. To this end, the Human
Rights Com­mittee has been critical of many member states,
including the U.S., for their laws respecting sexual orientation.
For example, in recent concluding observations about the U.S., the
Human Rights Committee "notes with concern the failure to
out­law employment discrimination on the basis of sex­ual
orientation in many [U.S.] states."[44] A 2004 press release from
Amnesty International is partic­ularly illuminating:

Sexual rights are human rights…. There is a long legacy
of advocacy on sexuality and human rights within the U.N. arena
that will continue until all people are free to exercise all their
human rights without discrimination of any kind.[45]

Family: Rhetoric Without Recognition for Parental
Authority. U.N. documents refer to the family as "the basic
unit of society"[46] and "the nat­ural environment for the
growth and well-being of all its members"[47] and even call for its
protection. However, more specific policy statements do not follow
through on that rhetoric.

The U.N. Convention on the Rights of the Child includes numerous
provisions that would distance children from their parents'
oversight, infringing on parental rights and authority in their
child's edu­cation and upbringing. For example:

The child shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media
of the child's choice.[48]

U.N. conventions and declarations also curtail parental rights
when they declare sexual health pri­vacy rights for
adolescents. Although minors ought to have their parents' or
guardians' guidance in sen­sitive health issues, the Beijing
Declaration laments, "Counseling and access to sexual and
reproductive health information and services for adolescents are
still inadequate or lacking com­pletely, and a young women's
right to privacy, con­fidentiality, respect and informed
consent is often not considered."[49]

Making an International Issue of Gender. Con­sidering
the original premise of the United Nations, the organization's
engagement in the politics of gender is an extraordinary example of
mission creep. The name of the U.N. Office of the Special Advisor
on Gender Issues and Advancement of Women exemplifies the
specificity with which the U.N. addresses social issues. According
to that office, gender is not merely the condition of being male or
female. Rather, gender is "socially con­structed,"
"context/time-specific and changeable," and "part of the broader
socio-cultural context."[50]

The United Nations' stated strategy of "gender mainstreaming" is
its policy implementation of this radical concept of gender. Gender
mainstreaming is the practice of "ensuring that gender perspectives
and attention to the goal of gender equality are cen­tral to
all activities-policy development, research, advocacy/dialogue,
legislation, resource allocation, and planning, implementation and
monitoring of programmes and projects."[51] The U.N. has proven a more
promising avenue for promoting this agenda than have the political
processes of most nations.

The U.N. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) resembles the feminist agenda
in the United States.[52] While CEDAW does address egregious cases
of dis­crimination, it goes well beyond this in an effort to
effect social transformation, stating that a "change in the
traditional role of men as well as the role of women in society and
in the family is needed to achieve full equality between men and
women" and arguing that "the upbringing of children requires a
sharing of responsibility between men and women and society as a
whole."[53] The specifics of how to achieve these
goals for each country that ratifies CEDAW are left to the treaty
body, the Committee on the Elimination of Discrimination Against
Women, which in one example exercised its man­date against
"traditional roles" in criticizing Belarus: "The Committee is
concerned by the continuing prevalence of sex-role stereotypes and
by the reintro­duction of such symbols as a Mothers' Day and a
Mothers' Award, which it sees as encouraging women's traditional
roles."[54]

The CEDAW Committee frequently includes rec­ommendations on
the subject of prostitution, urging countries to adopt more lenient
prostitution laws or even to decriminalize and treat prostitution
the same as any other form of labor. In 1999, it gave China this
report: "The Committee is concerned that prostitu­tion, which
is often a result of poverty and economic deprivation, is illegal
in China. The Committee rec­ommends decriminalization of
prostitution."[55]

The Committee urged the Swedish government "to evaluate the
effect of the current policy of crim­inalizing the purchase of
sexual services"[56] and reported its concern to Germany that,
"although they are legally obliged to pay taxes, prostitutes still
do not enjoy the protection of labour and social law." It
recommended "that the Government [of Germany] improve the
legislative situation affect­ing these women so as to render
them less vulner­able to exploitation and increase their social
protection."[57]

The United States has refused to sign or ratify CEDAW, but
countries that have signed it are legally bound to implement its
provisions. Signato­ries "are also committed to submit national
reports, at least every four years, on measures they have taken to
comply with their treaty obligations."[58] Despite the U.S.
government's refusal to ratify CEDAW, Supreme Court Justice Ruth
Bader Gins­berg cited it in her concurring opinion in
Grutter v. Bollinger.[59]

Conclusion

With attention focused on the United Nations following
high-profile scandals like Oil-for-Food and the approaching
transition in the Office of U.N. Secretary-General, this is a prime
opportunity for the President and Congress to assess the scope of
U.N. policymaking, which has expanded over the decades, and
consider the implications for U.S. constitutional governance. It is
critical that the U.S. government carefully scrutinize each
negotiating circumstance not only with respect to its discrete
content, but within the broader context of U.S. national
security.

Specifically, the United States should:

Reject treaties that infringe on U.S. domestic jurisdiction
over social issues. The President should not sign, nor should
the U.S. Senate rat­ify, treaties that abrogate the authority
of Amer­ican government-whether national, state, or local-to
make policy on domestic social issues.

Maintain increased awareness of the extent of U.N. social
policymaking to guard against encroachment on congressional
authority and the American constitutional order. As the
elected, legislative branch of government, Con­gress has the
primary policymaking authority within the federal government. To
guard that authority, Members of Congress must be aware of the
scope of U.N. policymaking and resist encroachments. Congress must
also maintain oversight of unelected U.S. officials who
nego­tiate family, religion, and civil society issues at the
United Nations. A major purpose of national security is to defend
the civil society within American society. Congress should play the
leading role in shaping how that goal will be integrated into
overall foreign policy, including measures to prevent U.N.
policymaking for the United States.

Preserve and encourage a strong civil society in the
interest of protecting constitutional order and individual
rights. Representatives of the U.S. government should present
the case that family, religious practice, and private
asso­ciations are essential to freedom and that the U.S. will
not participate in international policy­making that would
create an environment that is not conducive to them. Moreover, the
federal government should refrain from expanding the scope of the
administrative state domestically and seek strategies to roll it
back so that civil society will thrive. One successful example is
the welfare reform of 1996, which decreased dependence on the
government and reduced poverty. Only by restraining the
administrative state at home will the United States be equipped to
resist it and restrain it on the inter­national level.

Recognize that many nations and nonstate actors view
functional deliberations as means of exercising power. This is
particularly true for those that do not possess significant
military or political power. Further, it includes states and
nonstate actors that do not share a confi­dence in or
commitment to the primacy of the nation-state in general,
particularly U.S. national sovereignty. To better defend American
interests, U.S. policymakers must assess the interests that
motivate participants in func­tional forums.

Consider the cost before opening new inter­national
social policymaking fronts, and weigh the national interest in
participating in ongoing policymaking forums. Once opened,
functional forums demand attention. Before becoming party to a new
functional forum or agreeing to participate in an existing body,
U.S. policymakers should consider whether partici­pation is in
the national interest; define the objectives of participation
(e.g., monitoring and intelligence gathering, defending a key
pol­icy, or advancing a strategic agenda); and weigh costs and
benefits, particularly in terms of the resources that will be
required to accomplish the stated objectives. By definition,
functional forums are staffed by bureaucrats with special­ized
administrative job descriptions who fre­quently have extensive
technical expertise in bureaucracy and/or the subject matter at
hand. It is important to reckon soberly in terms of personnel,
resources, strategic integration, and support from other foreign
policy sectors what will be needed to achieve success in an ongoing
mission to a functional forum. In doing so, U.S. policymakers
should recognize that they are engaging on foreign terms of debate,
since the internationalization of administrative gover­nance in
domestic policy issues is antithetical to American freedom.

Develop a strategy for engaging in cold wars of ideas and
defending civil society. The United States will be involved
perpetually in cold wars of ideas. Such wars in the ideological
realm also require strategy, and the U.S. should approach them with
an offensive, rather than defensive, footing. This should include
enhanced public diplomacy and a coherent strategy for dealing with
international organiza­tions. A clear tenet of this strategy
should be protecting American civil society.

Treat U.N. functional forums as an opportu­nity for
public diplomacy. When U.S. repre­sentatives participate in
U.N. forums on social issues, they should be equipped to champion
the U.S. model for protecting individual rights and advancing the
general welfare and prosper­ity of Americans through limited
government and civil society. On issues from human rights to
women's status, the U.S. has a strong record. NGOs that recognize
the benefits of the Ameri­can constitutional order for family,
faith, and freedom should participate actively in present­ing
this message at the United Nations.

As the United Nations engages in administrative policymaking on
an increasingly wide range of issues, it threatens the security of
civil society in the United States. Family, religious faith, and
private associations have been bulwarks of America's free­dom
throughout its history. Surrendering policy­making authority in
these areas would erode some of the great sources of strength for
the American order. Constitutional government remains the best
protection for individual rights and civil society, and the United
States should continue to secure them within its sovereign sphere
rather than relinquish­ing authority to international decision
makers who are not committed to America's founding ideals.

In the end, the interests of civil society institutions coincide
with the interests of freedom. By protecting civil society,
constitutional government ensures its own longevity and fortifies
its security in the world. The character of our culture shapes our
idea of free­dom in powerful ways. As George Weigel has
observed, "history is driven, over the long haul, by culture-by
what men and women honor, cherish, and worship; by what societies
deem to be true and good and noble…by what individuals and
societies are willing to stake their lives on."[60]

Jennifer A.
Marshall is Director of, and Grace V. Smith is a former
Research Assistant in, The Richard and Helen DeVos Center for
Religion and Civil Society at The Heritage Foundation.This
paper is one of a series prepared as part of the Freedom Project of
the Margaret Thatcher Center for Freedom at The Heri­tage
Foundation.

[3] The U.S. Supreme Court began to promote a
new conception of religious liberty and the idea of "the wall of
separation between Church and State" beginning with Justice Hugo
Black's opinion in Everson v. Board of Education (1947).
This logic continued in Lemon v. Kurtzman (1971), which
established the "lemon test" for violation of the Establishment
Clause.

[8] For a more thorough analysis of the
Roosevelt Doctrine and human security, see James Jay Carafano,
Ph.D., and Janice A. Smith, "The Muddled Notion of Human Security
at the U.N.: A Guide for U.S. Policymakers," Heritage Foundation
Back­grounder, forthcoming.

[10] Mitrany served on the British Labour
Party's Advisory Committee on International Affairs from 1918-1931,
wrote on foreign policy for The Manchester Guardian as
Europe emerged from World War I, and taught at Princeton before
joining the Institute for Advanced Study in the early 1930s. See
David Mitrany, The Functional Theory of Politics (New York:
St. Martin's Press, 1975), pp. 8-9 and 28.

[11] David Mitrany, A Working Peace
System: An Argument for the Functional Development of International
Organizations, 4th ed. (London: National Peace Council, 1946),
p. 59.

[13] "[F]unctionalism treats the promotion
of welfare as an indirect approach to the prevention of warfare."
Inis L. Claude, "International Organisation: The Process and the
Institutions," International Encyclopedia of the Social
Sciences, Vol. 8, pp. 34-35, quoted in Mitrany, The
Functional Theory of Politics, p.226.

[18] Mitrany was encouraged by "the growing
body of international administrative law…[which] parallels
the rapid growth of [national] administrative law." David Mitrany,
The Functional Theory of Politics, p. 227.

[26] For a discussion of the issue of rights
vs. entitlements, see Helle C. Dale, "Economic and Political Rights
at the U.N.: A Guide for U.S. Policymakers," Heritage Foundation
Backgrounder No. 1964, August 30, 2006.

[32] U.N. General Assembly, Declaration on
the Right to Development, Article 1.1, December 4, 1986, at http://www.unhchr.ch/html/menu3/b/74.htm
(August 28, 2006). Taking exception to this definition, the United
States has repeatedly stated its under­standing that the term
"right to development" means "that each individual should enjoy the
right to develop his or her intellectual or other capabilities to
the maximum extent possible through the exercise of the full range
of civil and political rights." U.S. Delegation to the 61st
Commission on Human Rights, "Explanation of Vote on Right to
Development," April 12, 2005, at http://www.state.gov/p/io/44595.htm (August
28, 2006).

[33] U.N. General Assembly, Declaration on
the Right to Development, Article 7.

[43] In a statement of its position
regarding abortion-related matters, the U.S. mission to the U.N.
has clarified that: "The United States understands that there is
international consensus that the terms 'reproductive health
services,' 'reproductive right,' and 'reproductive health' do not
include abortion or constitute support, endorsement, or promotion
of abortion or the use of abor­tifacients." Press release,
"Explanation of Position by Laurie Lerner Shestack, Adviser, on
Women in Development, in the Sec­ond Committee," U.S. Mission
to the United Nations, December 19, 2005, at http://www.un.int/usa/05_271.htm (August
16, 2006).

[52] According to CEDAW, discrimination
against women includes "any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by
women, irrespec­tive of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms
in the polit­ical, economic, social, cultural, civil or any
other field." U.N. General Assembly, Convention on the Elimination
of All Forms of Discrimination Against Women, at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm
(August 16, 2006).

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Family, religious faith, and private associations have beenbulwarks of America's freedom throughout its history, andsurrendering policymaking authority in these areas would erode someof the great sources of strength for the American order. ThePresident and Congress should consider the implications of thescope of U.N. social policymaking for U.S. constitutionalgovernance and national security.

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